Saturday, September 7, 2013

The Straight Dope on Restitution

Background. Lawrence
DeMello was charged with harassment and simple trespass. At trial, Alex
Kelekoma testified that he was married to Carleen Kelekoma. His ex-wife,
Cherilyn Kelekoma, lived with her boyfriend, DeMello. One day there was a
dispute over picking up Alex’s son between the couples. Alex called DeMello to
talk about it. DeMello was argumentative, but calm. Carleen took the phone and
started talking to DeMello, and according to Carleen, DeMello hung up on her. Then
Cherilyn called and Carleen answered the phone. Carleen said to her that she
didn’t do anything to him. A few minutes later, Alex saw DeMello in front of
his house. Alex went outside, DeMello hopped the gate. Alex testified that DeMello
approached Carleen and was very aggressive. Cherilyn showed up and approached
Carleen. It looked to Alex like Cherilyn was going to attack Carleen so he got
in between the women. Cherilyn was still trying to go for Carleen and all three
fell on the lawn. Alex testified that at that point, DeMello grabbed Carleen’s
hair and dragged her about ten feet across the lawn. Alex shoved DeMello away.
According to Alex, DeMello started bouncing around saying, “[d]on’t put your
hands on me. You know, like I will knock you out.” Alex told them to leave, but
they wouldn’t.

Calreen testified that she felt
excruciated pain after she fell on the lawn like her hair was being pulled. She
also felt pain in her neck as it jerked back and forth then she testified that she
lost consciousness. When she came to, she was under the lemon tree having a
hard time breathing and feeling dizzy. She was still in pain. She told DeMello
and Cherilyn to get off her property, but they wouldn’t leave. Carleen went
inside the house and called the police. The police arrived to see DeMello
yelling at the Kelekomas.

Cherilyn testified that Carleen
attacked her first and continued to attack her even when Alex intervened. She
testified that Carleen grabbed her hair before they all fell to the ground.
Cherilyn testified that although she didn’t see DeMello grab Carleen’s hair, he
might have done that to get Carleen to let go of her own hair. Cherilyn also
testified that no one told them to leave the property.

DeMello testified that Alex
invited him onto the property so he hopped the gate and came on like he
normally did in the past. DeMello testified that Carleen came up to him
aggressively and got in his face so he put up his hands. When Cherilyn came
over, Carleen started attacking her. DeMello testified that Alex never fell to
the ground with the women. He ran off into a corner. DeMello said that Carleen
was pulling Cherilyn’s hair so he tried to pull her off. His hand got tangled
in her hair, and he pulled her hair to protect Cherilyn. He told Carleen to let
her go.

The district court found DeMello
guilty as charged and expressly rejected the defense-of-others defense. According
to the district court, there was no reason to pull Carleen’s hair to protect
Cherilyn because Alex was in the middle. The district court sentenced DeMello
to jail for 30 days and anger management classes. He also fined him $100 for
the simple trespass. Carleen later claimed medical bills and lost wages as
restitution. Carleen claimed that the incident exacerbated a pre-existing neck
injury from a dirt bike accident. The district court awarded more than $3,000
in medical bills and lost wages. DeMello appealed.

The Defense-of-Others Defense Properly Rejected. The ICA held that the district court did not err
in rejecting DeMello’s defense-of-others justification under HRS § 703-305. “The
prosecution disproves a justification defense beyond a reasonable doubt when
the trial court believes the prosecution’s case and disbelieves the defendant’s
case.” State v. Juhn, 83 Hawai'i 472,
483, 927 P.2d 1355, 1366 (1996). That, according to the ICA, is exactly what
happened here. The district court obviously credited Carleen and Alex’s version
of what happened because it found that Alex was between the women. DeMello
testified that Alex was in the corner. “Verdicts based on conflicting evidence
will not be set aside where there is substantial evidence to support the trier of
fact’s findings.” State v. Sua, 92 Hawai'i
61, 69, 987 P.2d 959, 967 (1999).

But the Sentence is Unlawful. Harassment is a petty misdemeanor. HRS § 711-1106.
The maximum sentence for a petty misdemeanor is 30 days in jail. HRS § 706-663.
Nothing in the statute authorizes the district court to order anger management
or any other treatment program. The ICA noted, however, that HRS §
706-624(2)(j) allows the district court to place a defendant on probation and
order mental health treatment. But that would mean there can be no thirty-day
jail term. The prosecution conceded this error.

Restitution is Required when Requested by Victim. “The court shall order the defendant to make
restitution for reasonable and verified losses suffered by the victim or
victims as a result of the defendant’s offense when requested by the victim.”
HRS § 706-646(2). According to the ICA, the statute plainly and unambiguously requires
restitution when the victim requests it and can show losses caused by the
defendant. “[A] defendant cannot be ordered to pay restitution unless he caused
a victim’s losses.” State v. Domingo,
121 Hawai'i 191, 194, 216 P.3d 117, 120 (App. 2009). Here, the ICA held that
the district court had sufficient evidence to find causation for the medical
bills and it did not need to apportion what he caused and what Cherilyn might
have caused from the hair pulling.

Wage Losses are not Part of a Restitution Award. The ICA agreed with DeMello that the $1,155 in
lost income cannot be part of the restitution award. The ICA began by noting
that HRS § 706-646 does not expressly prohibit or allow lost wages. However,
the legislative history shows that lost wages were considered, but rejected by
the House. H. Stand. Comm. Rep. No. 683-98, 1998 Hse Journal at 1305-06. It never
made it back into the legislation. Thus, the ICA held that the omission was
intentional and HRS § 706-646 does not authorize lost wages.

Preexisting Injury Complicates Restitution Findings.
Restitution is limited to “reasonable and verified
losses suffered by the victim or victims as a result of the defendant’s
offense[.]” HRS § 706-646(2). That means there must be a nexus between the
defendant’s conduct and the victim’s loss. See
Domingo, supra. The ICA relied on
cases from other jurisdictions that have dealt with problems in causation for
restitution. The ICA held that “where there is more than one possible cause for
the loss, the court must determine whether the evidence supports the finding
that the defendant’s conduct caused or contributed to the victim’s loss.” See State v. Gibson, 160 N.H. 445, 449,
999 A.2d 240, 243 (2010); Commonwealth v.
Balisteri, 329 Pa. Super. 148, 155, 478 A.2d 5, 9 (1984).

In this case, the district court
found that the DeMello exacerbated a preexisting injury, but found that
apportionment was impossible because there was no expert testimony or medical
opinion presented by the prosecution. This conclusion, according to the ICA, is
“at odds” with the imposition of the award. The ICA vacated the entire award
and remanded for a further evidentiary hearing, if necessary.

The Prosecution must Prove it by Preponderance of
Evidence. The burden of proof has never
been expressly established in Hawai'i. The ICA took this opportunity to lay it
out clearly and succinctly. Restitution is “quasi-civil” and is “designed to
compensate the victim as an adjunct of punishment.” State v. Feliciano, 103 Hawai'i 269, 272, 81 P.3d 1184, 1187
(2003). It is also intended to be an expedient method of compensation. Stand.
Comm. Rep. 683-98, 1998 Hse. Journal at 1305.

The ICA held that the initial burden is on the prosecution to make a prima facie showing for the restitution claim, but the defendant contesting the amount must "come forward with evidence to support his or her challenge."

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